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Does Oregon Have the Legal Right to Administer Drugs for the Purposes of Physician-Assisted Suicide?

"The Supreme Court held an intense oral argument yesterday on Oregon's first-in-the-nation law allowing physician-assisted suicide, with the new chief justice, John G. Roberts Jr., sounding skeptical about the state's claim that it can make its own rules without federal interference.

At issue is a 2001 directive by then-Attorney General John D. Ashcroft that threatens punishment of any Oregon doctor who prescribes a lethal dose of federally controlled drugs to help a terminally ill patient end his or her own life. Oregon enacted its law permitting such prescriptions in 1997, and the state says it falls within its traditional prerogative to regulate the practice of medicine

The Bush administration argues that Ashcroft was within his statutory authority when he declared that Oregon's law is trumped by the federal Controlled Substances Act."

Does Oregon Have the Legal Right to Administer Drugs for the Purposes of Physician-Assisted Suicide?

PRO (yes)

CON (no)

Eli D. Stutsman, JD, a board member of the Death with Dignity National Center and co-author of Oregon's Death with Dignity law argued in his July 2005 brief for Gonzales v. Oregon:

"The States, not the Attorney General acting through the Controlled Substances Act, regulate medicine... This is no small point of dispute. The framers of the Constitution 'split the atom of sovereignty' two ways: horizontally among the three branches of government and vertically between the federal and state governments...

The Attorney General may enforce the 'uniform national policy' intended by Congress to prevent illicit drug use, drug trafficking, and drug diversion and, at the same time, Oregon practitioners acting in accord with state law, authorized by the Board of Medical Examiners and registered with the DEA, may possess, prescribe, and/or dispense schedule II substances within 'the course of their professional practice,' and in the 'public interest.'"

Mary Williams, JD, the Solicitor General of Oregon, argued in her July 2005 brief for Gonzales v. Oregon:

"That division [between state and federal powers] was, of course, an essential part of the founders' design, and one of our nation's 'first principles'…

But the benefits of federalism are not merely quaint relics of simpler days, trotted out from time to time to placate parochial interests. This Court has recently and repeatedly reaffirmed the importance of the state-federal balance as a bulwark against the excessive aggregation of power in either state or federal government...

This Court's consistent recognition that States 'primarily and historically' have power 'to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons,' necessarily acknowledges that States have the sovereign's prerogative to determine what medical practices are and are not acceptable. None of the language Congress used in the Controlled Substances Act demonstrates unmistakably that Congress intended to reverse that longstanding recognition. To the contrary, the clues to legislative intent described above make it more likely that Congress intended to respect the States' sovereignty over the practice of medicine.

The Death With Dignity Act (DWDA) is an expression of Oregon's 'independent sovereign[ty],' within the ambit of the State's historic power to regulate the practice of medicine. The U.S. Attorney General's threat to deregister or prosecute Oregon physicians and pharmacists who comply with the DWDA will necessarily deprive Oregonians of the rights embodied in that Act."

Taylor Carey, JD, a Special Assistant Attorney General of California, in his Aug. 2005 brief for Gonzales v. Oregon reasoned:

"Regulation of the practice of medicine has long been regarded as the responsibility of the individual sovereign States…

States have generally enjoyed 'broad powers' in matters concerning the practice of medicine for protection of the health and welfare of their citizens… Indeed, experimentation by States in the regulation of social matters has long been regarded as a bedrock of Federalism…

An intrusion into the traditional purview of state legislative control by an administrative agency such as is effected by the Attorney General's 'directive' here must be grounded in a clear expression of congressional intent. However, nothing in the Controlled Substances Act delegates to the Attorney General authority to interfere with State regulation of the practice of medicine."

The National Right to Life Committee, in its Jan. 2006 response to the Supreme Court's Gonzales v. Oregon ruling, stated:

"The Court did not say the use of federally controlled drugs to assist suicide is a matter the Constitution requires be left to the states. On the contrary, the opinion said, 'Even though regulation of health and safety is 'primarily, and historically, a matter of local concern,' there is no question that the Federal Government can set uniform national standards in these areas.'

In short, the mere fact that a state like Oregon chooses, under its own law, not to prevent assisting suicide does not give it some constitutional right to hijack federally controlled drugs and commandeer them to ensure the efficient elimination of its vulnerable residents."

Wesley J. Smith, JD, Anti-Euthanasia Activist, in his June 2005 article "False Federalism" that appeared in the National Review Online, argued:

"I have argued...that Oregon is violating the principle of federalism by seeking to prevent the federal government from pursuing its own legitimate public policy. Now, this view has been substantially supported in... Gonzales v. Raich, in which the Supreme Court ruled 6-3 that the federal government is entitled to enforce the Controlled Substances Act's proscription of the use of marijuana--even though California permits the drug to be possessed legally for medicinal purposes...

Most of the issues dealt with in Raich involved arcane interpretations of the interstate commerce clause... but the majority opinion, written... by Justice John Paul Stevens, also invoked the Constitution's Supremacy Clause as 'unambiguously' providing 'that if there is any conflict between federal and state law, federal law shall prevail.'

...Gonzales v. Raich, alongside the earlier unanimous Ashcroft v. Oakland Cannabis Buyer's Cooperative, points clearly in the direction (barring a technical defect in the federal government's approach) to the Supreme Court's strongly affirming a federal right to proscribe the use of federally controlled substances in assisted suicide unfettered by state laws to the contrary. That would be a proper federalist result."

The Family Research Council, in its Apr. 2005 amicus brief for Gonzales v. Oregon argued:

"The Controlled Substances Act (CSA), as interpreted by the Attorney General, does not interfere with Oregon's regulation of a traditional state function. The Oregon law authorizes and protects a non-traditional, deadly practice, using federally controlled substances… This deadly practice cannot be a traditional state function as Oregon professes it to be. As such, Oregon has no right to prevent federal enforcement of the applicable federal drug laws under the CSA…

Nothing in the record suggests that dispensing drugs to assist suicide is a traditional or legitimate medical practice subject to state regulation. As such, Oregon has no peculiar local, historical, or traditional interest in its regulation. It certainly, therefore, has no right to prevent federal enforcement of the federal drug laws under the CSA…

Up until the time when Oregon passed its law, the practice of medicine in Oregon (and in every other state) did not involve assisting suicide using federally controlled substances. Oregon's federalism argument is, therefore, a canard where the federal regulation has no direct effect on truly traditional state medical practice."